constitutional law essay

Supreme Judiciary And The Backlog Of Cases

Once in a rainy evening Mr.Mobbat Ali and Mrs.Kumkum Begum was drinking tea in front of their veranda. Suddenly, Mr.Salam came in their house. Mr.Salam was previous lover of Mrs.Kumkum. Without any warning he shoted Mr.Mobbat,Mr.Mobbat died on the spot. After that Mrs.Kumkum submitted a case in Police station. As time passed way but the herring of the case did not occurred in court. After 10 years Mrs.Kumkum died in a road accident and the case file of Mr.Mobbat Ali closed. Mrs.Kumkum was unable get the justice from the court because the court is already dealing with so many cases.The named this problem is called Backlog Case.

In short form “Backlog cases are those cases that are not resolved within time goals that courts have set down for themselves. One definition given is that backlog of cases are confined to those cases which are ready for trial but yet to be disposed of and without any definite time for disposal. [1] Now a day’s backlog cases in the lower level of judicial system is increasing day by day. At this moment, Victim needs to wait more than a year to get justice from our judicial system. More and more cases are submitted then the clearance rate of the cases. This is one of worst problem that our judicial system is facing. In this situation of backlog case our judicial system must take pioneer role to solve this issue.

Any system of regulations to govern the conduct of the people of a community, society or nation, in response to the need for regularity, consistency and justice based upon collective human experience. [2] Whether the person is governor or being governed, rulers or being ruled, no one is above the law, no one is exempted from the law, and no one can grant exemption to the application of the law. The backlog case is a barrier to prevent general person to getting any support from legal system of Bangladesh.

In this research paper I will try to found out the way by which our supreme judicial can take bold step to resolve this backlog of cases from our judicial system.

History of Supreme Judiciary of Bangladesh

The present legal and judicial system of Bangladesh owes its origin mainly to two hundred years British rule in the Indian Sub-Continent although some elements of it are remnants of Pre-British period tracing back to Hindu and Muslim administration. It passed through various stages and has been gradually developed as a continuous historical process. The process of evolution has been partly indigenous and partly foreign and the legal system of the present day emanates from a mixed system which has structure, legal principles and concepts modeled on both Indo-Mughal and English law. [3] The Indian sub-continent has a known history of over five hundred years with Hindu and Muslim periods which proceeded the British period, and each of these early periods had a distinctive legal system of its own. [4]

The Supreme Judiciary of Bangladesh consists of a Supreme Court, subordinate courts and tribunals. This was Created by Part VI Chapter I of the Constitution of Bangladesh adopted in 1972.From the very beginning Supreme Judiciary is divided into Two Division 1) Appellate Division and 2) High Court Division. [5] It is central court of Bangladesh and others Courts and tribunals are subordinate to it. The Supreme Court of Bangladesh is the highest court of law in Bangladesh. As of October 2010, there are 5 Justices in Appellate Division and 90 Justices in High Court Division. Needless to say that in Bangladesh the sub-ordinate judiciary both in Civil and Criminal side originated from Civil Court Act, 1887 and Criminal Procedure Code, 1898. Apart from this, in Bangladesh there are some other special laws providing for the basis of some special courts, such as labor court, Juvenile Court, Administrative tribunal etc. [6]

Current Situation of Backlog Cases

Current situation of Backlog is too bad. The rate of backlog cases is increasing day by day. The pending rate of the cases is higher than the clearance rate of case from the judicial system. As a result the problem is getting worse day by day. In total daily our judicial system can resolve 150 Cases daily and currently in total daily 250 cases submitted to the court. [7]

Why Supreme Judiciary must take bold step

Due to the following reason supreme judiciary of Bangladesh must take bold step to resolve backlog case problem from our judiciary system:

People Confidence: Supreme Judiciary must take bold step so that people will have a confident on our judicial system. “It will also ensure human rights. Backlog of cases obstructs the 'access to justice' which is considered to be the 'most basic human rights', as 'access to justice' does mean not only the presence of justice mechanisms like courts, tribunals etc. but also the ability of those mechanisms to deliver affordable and timely justice to the citizens." [8]

Control corruption: Corruption in Bangladesh increasing day by day. As people do not have fear of punishment this rate is increasing day by day. To control the rate of corruption supreme judicial must take bold step to resolve backlog case problem. [9]

Political Leader accountability: Supreme Judiciary must take the bold step to resolve this issue so that political leader will accountable for their work. The intransigence of the bureaucracy makes it nearly impossible to hold political leaders accountable for making good on their campaign promises. Nor will it allow for the improvement of sectors that would allow the government to deliver socially beneficial services such as education, healthcare and a general rule of law. [10]

Reason of the problem

The reasons for which the problem of backlog cases in Bangladesh has increased lots are following:

Infrastructure support [11] : Currently. There were not enough infrastructure support and expertise at district levels to submit forensic evidence. Due to absence of this type of support rate backlog cases increased.

Absence of Proper Witness Parties: Currently, Most of the time witnesses that were presented in court are not proper witness party for the case. As a result, the court takes time to resolve a particular case. [12]

Transfer of Judge : Transfer of the judges, often meaning that the same judge who heard testimony may not decide the dispute, taking away thereby much of his incentive to push forward the proceedings to judgment and seriously impeding the process of continuous trial; the new judge may have to repeat some of the procedural requirements already fulfilled. [13]

Absence of Lawyer & client accountability: currently, most the time lawyer and client are not accountable to their job. Client sometimes provide false information and lawyer sometimes to make hearing time longer to earn more money from the client. [14]

Political Influence: Currently, In Bangladesh most of the time it seen that political government always tries to use the legal system against it opponent party. Always this happened in Bangladesh. This kind of activity also increased the rate of backlog cases in our judicial system. [15]

Discrimination in Legal System: The researcher identified various forms of discrimination, one being discrimination of indigenous people and minorities, and another being gender discrimination. Discrimination weighs heavily on the justice system of Bangladesh. [16]

Weakness in Criminal Justice system: our criminal justice system suffers from two major weaknesses. The first weakness pertains to investigation— the process, rules of procedure, and the investigator. A well-carried out investigation is crucial to the success of a prosecution. The rate of conviction in Bangladesh is currently below 15% largely because our investigation system is very poor. Investigation is conducted by the police, who lack the appropriate training for making a good investigation, which requires specialized skills as well as a large amount of time to complete. [17]

The step that supreme judiciary should take to resolve backlog case problem are following:

Effective case management by Judges and Magistrates [18] : Case management by Judges and Magistrates should be effective and efficient. Supreme Judiciary Bangladesh must take a imitative so that there will be a performance evaluation method established for Judge and Magistrate.

The setting up of specialized tribunals: The supreme Judicial should setup some special tribunal to deal with the case. They may setup a categories tribunal so that it will take less time to resolve a case.

Increase number judge in judicial system: Supreme judicial must take bold step to assign new judge in judicial system so that it will take less time to resolve a problem. “Meritorious and efficient persons should be appointed the judges of higher Courts. But it is alleged that almost all judges of High Court Division of Supreme Court have been appointed on political consideration neglecting merit and efficiency." [19]

Four-tier system of judiciary: [20] "Supreme Judiciary can take step reform our judicial system from two tier two four tier system. So that our system will be decentralized and judicial work by Judge and lawyer will be faster and flexible.

Computerization and Monitoring System: The current judicial system in Bangladesh is hand-written one. The use of information technology will make it more speedy and efficient. So the entire court system should be computerized. The higher court should effectively monitor and supervise the works of lower courts. [22]

Strengthen the public prosecution service: The supreme judicial must take some step so that public prosecution service will get strength to solve a case. [23]

Conclusion

In our judicial system backlog cases are one of most vulnerable problem. The rate at which this problem is increasing is quite disappointing. Solving this problem is forceful, lengthy and challenging task for supreme judiciary. Our supreme judiciary cannot alone solve this problem but it takes first step to solve this problem. And at the same time judiciary must update the common citizens on this vision for upholding their confidence in Judiciary. But, above all, the judiciary must be cautious that it does not sacrifice access to 'justice' for the sake of 'access' to justice. [24]

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